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Vernellia R. RandallProfessor of Law
The University of Dayton
Web Editor

Rebecca L. Case

excerpted from: Rebecca L. Case, Not Separate but Not
Equal: How Should the United States Address Its International
Obligations to Eradicate Racial Discrimination in the Public Education
System? , 21 Penn State International Law Review 205-226, 215-226 (Fall
2002) (136 Footnotes)

The United States has confirmed its intention, in several
international venues, to address racial discrimination and institutional
racism existing within the United States' borders. The United States has
attended world conferences and signed several treaties expressing the
country's aspirations to eradicate racially discriminatory practices in
the education system. The promises the United States has made to the
international community currently are only aspirations and goals that
the country must still address. The story of Tony illustrates how racial
discrimination and institutional racism can still affect children's
lives in the United States. The treaties and the conference
recommendations present a framework that the United States can use to
address the discrepancies of the education system.

Considering the enormous consequences of discriminatory acts toward
children in school, the remainder of this comment will address the
United States' obligations and promises under the CERD, the CAT, the
ICCPR, and the Programme of Action from the World Conference on Racism
to eliminate the racially discriminatory practices in the American
public education system. This comment will acknowledge where the United
States has fulfilled their duties under the treaties and will highlight
the areas where the United States has not yet satisfied their treaty
obligations. Finally, this comment will recommend solutions based on
shadow reports, the general comments to the treaty bodies from the
United States, the recommendations made by the treaty body members to
the United States, recommendations from the "World Conference
against Racism, Racial Discrimination, Xenophobia and Related
Intolerance," and other independent sources that address racial
discrimination within the American education system.

A. Improvements in United States' Education System

While the CERD, ICCPR, and CAT have different goals, each treaty
addresses the need to protect children, regardless of their ethnic
origin in the area of education. The "World Conference on Racism
Programme of Action" states the need to ensure equal access to a
quality education. The CERD requires every child to have a right to an
education. The ICCPR states that children have a right to be protected,
irrespective of their skin color. The CAT requires all forms of torture
to be eliminated; this includes the severe mental suffering that is
associated with discrimination. The CAT also requires that all public
officials be taught what torture is and how to prevent torturous acts.
The United States has addressed these treaty obligations with some
success.

Prior to the ratification of any of the treaties, the United States
made a monumental step toward eradicating discrimination in the public
education system when the Supreme Court desegregated the country's
public schools in the Brown v. Board of Education decision in 1954.
Consequently, the American schools are no longer permitted to reject a
student solely on the student's ethnic background. Brown v. Board of
Education also led to the mandated integration of public schools in
historically segregated schools. Post-Brown, schools may have become
physically more integrated but more was left to achieve.

The United States continues to make improvements in the area of
education and today has created a framework within the federal
government to theoretically ensure that any obstacles to an equal
education are removed. For instance, the United States Department of
Education administers laws and programs aimed to eliminate the racial
disparities in the educational system. Recently, the Office for Civil
Rights, which operates within the United States Department of Education,
has broadened its responsibilities from simply administering laws, to
now monitoring activities in the educational system, enforcing
desegregation plans, issuing policies to help educators meet civil
rights requirements, administering studies to review the system's
compliance with civil rights laws, and investigating civil rights
complaints.

The Office of Civil Rights has further broadened its focus on
monitoring school districts by examining the more complex and subtle
issues that underlie unequal access to programs that students may
encounter. For example, the Office of Civil Rights has moved from
focusing solely upon school districts and colleges that are openly
segregated toward ensuring that there are no racial barriers for
students who apply or participate in various educational programs and
services. In addition to what the Office of Civil Rights already
investigates, the office has also expanded the method of investigating
civil rights complaints by utilizing non-adversarial dispute resolution
methods to assist all parties to reach workable solutions for all
involved.

The United States has made efforts to educate the public officials
regarding torture, but due to the United States' unique definitions of
torture and public officials, the extent to which the United States must
educate their school officials is limited. While the government provides
a formal education to all individuals who will be involved in the
treatment of persons who are arrested, detained, or imprisoned, the
United States does not include school officials in this list of
officials. Although educational information on torture is not
specifically directed toward school educators, the school officials and
the general public may access the information through the United States
Department of State web page. However, it is apparent that the United
States does not intend to ensure that public school officials understand
their obligation to prevent torture in the school system.

B. United States' Deficiencies Under International Treaties

The United States claims that "the American public educational
system is open and accessible to all, regardless of race, ethnicity,
immigration status, or socio-economic status," and yet the academic
achievement gap between white students and students of color persists.
The racial disparities in "funding, curriculum, school discipline,
[and] college enrollment rate[s]," portray a public education
system still plagued by institutional racism and still unequal. Although
the United States has attempted to address the racial disparities in the
public education system through programs and methods that are not
facially discriminatory, the effects of the programs create higher
standards and greater obstacles for minority students, and consequently
add to the racial discrimination problem. This comment will address
three areas in the education system that have discriminatory effects:
disparate funding, academic tracking, and "zero tolerance"
discipline policies.

1. Disparate Funding

First, the capabilities of schools in impoverished districts are
extremely limited due to the structure of public school funding. If a
school has minimal funding, the opportunity for impoverished students to
excel is more difficult. When the money is unavailable, the necessities
of a solid education such as books, technology, clean and safe
facilities, good teachers, and small class sizes often cannot be
provided. The students score lower on standardized tests and are unable
to compete with the students from wealthier districts with more
educational resources.

2. Academic Tracking

Many districts have created academic tracking programs. These
programs allow teachers and school administrators to determine a
student's abilities and potential and then place that student in an
academic track reflective of teacher's or administrator's personal
perception. The academic tracks range from remedial and special
education programs to accelerated and gifted programs. Studies show that
African American and Latino students are over-represented in the lower
tracks and under-represented in the higher tracks. The tracking can
begin very early in a child's academic career and can be extremely
detrimental to the child's future. If a child is placed in a lower track
because of a perceived inability to do mainstream work, it is often very
difficult for the child to break into the higher track due to the very
nature of the tracking system.

The method of determining how to put a student in a particular track
is laden with racially discriminatory factors. To determine which track
to place a child in, three factors are considered: standardized test
scores, teacher recommendations, and parental intervention. First, the
standardized tests have frequently been criticized for being racially
biased. Second, teacher recommendations are strictly subjective and can
be based solely upon general impressions. Third, if parents are unaware
of the system due to language barriers or because of general ignorance,
the parents are unlikely to intervene on behalf of their child and push
for a higher track placement.

3. "Zero-Tolerance" Discipline Policies

Another area of racial disparity that leads to unequal treatment in
the schools is the area of discipline. Studies show that students of
color are more likely to be suspended and/or expelled from school than
similarly situated white students. This statistic has become more
pronounced now that schools that receive federal funding (all public
schools) must implement "zero- tolerance" policies for weapons
offenses. The policy may appear race neutral on its face, but the
implementation of the policy has lead to findings of racial
discrimination.

Since the consequences of bringing a weapon to school can be harsh,
and can include suspension or expulsion, schools are permitted to
evaluate incidents on a case-by-case basis and may deliver a less severe
punishment if mitigating circumstances permit. There is evidence to
suggest that if a student appears to have a positive and promising
future, schools will overlook relatively minor violations such as weapon
possession, and will not expel the student. Instead the schools will
deliver a lesser punishment in the hopes of rehabilitation, but there
are inequalities in the application of this school discretion. Often,
the minority students do not receive the benefit of this second chance
and tend to suffer more devastating consequences.

Racial discrimination affects more than disparate test scores and
overall unequal treatment in the schools. One effect is addressed
indirectly in CAT; however, because of the United States' limited
definition of "torture," the CAT's implications are severely
limited. According to the United States, the government need only deal
with mental suffering caused by torturous acts in very few
circumstances. These situations do not deal with any intentional racial
discrimination that takes place in the schools but rather they address
situations when the victim is in the custody of an official in the
criminal setting or in a mental institution. The United States appears
to ignore the times when children are under the control of the state
during schools hours.

Children are under the school's control during much of the day, for
five days a week. Yet this time of responsibility is not considered time
during which the United States accepts a responsibility to ensure that
the children are not experiencing torture in the form of mental
suffering. When a child endures racial discrimination in the school
system, the child will experience severe mental suffering that will
affect him/her throughout the child's life. Students can easily feel
frustrated as they are disregarded and classified in lower academic
brackets, punished more harshly, and not given the financial means to
succeed in school. As the discrimination continues throughout school,
the long-term effects will cause severe mental pain as the students
begin to believe they are inferior to their white peers. The United
States has not acknowledged the possibility that the suffering of the
students under the government's control may fall squarely under its own
limited definition of torture.

According to all three treaties, the unequal treatment between
minority students and Caucasian students runs counter to the United
States' international obligations. In the United States' report to CERD,
the government characterizes racial discrimination problems as mainly
private acts of discrimination. However, the disparities in schools are
not just a result of intentional or private acts. Discrimination in
school is a form of institutional racism and must be addressed by the
United States. The United States has an obligation under CERD to protect
everyone from acts of racial discrimination and laws that either
discriminate or have the effects of discrimination. Under CAT, the
United States must prevent torture of all forms, including mental
torture. Under ICCPR, the United States must protect every child,
regardless of his/her race, as a minor in the society. These
requirements are not currently being met.

C. How To Begin Eradicating Racial Discrimination

The problem with attempting to eliminate racial discrimination in the
United States is its deep-rooted foundation. Over time, the United
States has tried to tackle the issue of discrimination; but through many
self-imposed limitations, such as the ones found in the treaty
reservations, the government and the court have skirted around issues
that need to be directly addressed. Discrimination in the schools is an
issue that is easy to overlook because intent can rarely be proven.

The first step to eliminating racial discrimination in the school
system is to recognize the serious disparities within the schools, and
to recognize that the reasons for these disparities are not due solely
to student abilities or personal racism. The type of discrimination in
the schools that is often the most devastating is institutional racism.
This type of racism has no intentional motivation but instead is set up
within the system so that even if a person tries to be fair and equal,
the chances are that discrimination will still occur.

There are several ways in which the United States can begin to attain
the international standards that they have agreed to in various forms.
The first step is to recognize that the reservations in CAT, CERD, and
ICCPR are too narrow to truly reach the heart of discrimination.
Institutional racism affects more people and has a more damaging effect
upon the victims than personal racism does. If the United States
ratifies a treaty but submits so many limiting reservations that the
actual obligations of the United States in the treaty reflect the
current laws of the country, the aspirational value of the treaty is
lost.

The United States is not in compliance with any of the three
aforementioned treaties in the area of education. However, according to
the United States' report to the three treaty bodies, the United States
has fulfilled most of the commitments agreed upon in the treaties. As
long as the reservations pertaining to intentional acts exist, many of
the problems with discrimination will persist; yet the United States
will not have an international obligation to address them. Currently,
the United States has ratified treaties that have been narrowed so much
by reservations that the aspirational purpose of the treaty is lost.
Thus the ratification by the United States resembles mere lip service to
the international community, rather than a promise to improve.

A second vital step to eradicating racial discrimination in the
schools is to provide equal funding for all students. It is ironic that
students who are in the poorest of districts receive the smallest amount
of funding. The students in these neighborhoods often face innumerable
obstacles that will inhibit their ability to break out of the poverty
circle. Yet these are the students who are given the fewest of school
supplies and educational materials. The government cannot expect a
school to produce students with quality test scores when the school has
no resources to implement improvements.

The third step is to begin collecting data with consistent criteria
around the country. The various school districts have several methods
that are generally inconsistent with each other when collecting
statistics about discipline, test scores, and academic placements. If
schools were required to adhere to a uniform method, the country could
provide evidence of the actual deficiencies in the public schools. The
more the country accurately reports about weaknesses, the better chance
legislators and school administrators have to efficiently and
effectively address insufficiencies in public policy.

A fourth way to address the discrimination in schools is to eliminate
the academic tracking programs that virtually lock students into a
remedial track. When a student is locked into a program, the objective
of providing equal education is lost. The United States is supposed to
be the land of opportunity but in the tracking programs, the opportunity
to succeed academically is practically siphoned away.

Finally, the federal government should reevaluate the
"zero-tolerance" policies in schools. As the Programme of
Action from the World Conference against Racism states, all measures
should be taken to avoid programs that deny a student's equal access to
a quality education. Because schools apply the
"zero-tolerance" standard differently for similar offenses,
the government must reexamine the goals of the policy and perhaps find a
more rigid method for schools to apply the standard. If a more rigid
application is impossible to agree upon, then the expulsionary element
of the policy must be reserved for only the most severe of violations.
Schools have been given so much discretion that personal racial biases
are playing a significant role in the administration of the policy and
are harming minority students disproportionately to white students. For
these reasons, the policy must be adjusted or eliminated.

. . .

The United States has promised the international community that it
will work to eliminate racial discrimination in the public education
system. The United States has supported its commitment to eradicate
racial discrimination in the CERD, the CAT, the ICCPR, and by their
attendance at the "World Conference Against Racism, Racial
Discrimination, Xenophobia and Related Intolerance." In 1954, the
United States took a significant step forward by recognizing that the
doctrine of "separate but equal" is not a constitutionally
sound policy, but the struggle toward full integration is not yet
finished.

Today the schools appear relatively integrated, but beyond the
physical integration, many still areas are severely segregated. The
funding is unequal, the opportunities within the schools are limited to
minority students through the tracking programs, and the disciplinary
policies impact minority students disproportionately to white students.
The schools are not yet "open and accessible to all, regardless of
race" as the United States has claimed. There is still a long road
ahead of the country, with respect to the elimination of racism. The
first step is an honest recognition of the problem. Children across the
nation are entitled to a quality education and equal access to that
education. The United States has acknowledged this right of children,
but so far the country has not turned it into a reality. The United
States must make the necessary steps to address the problems in the
American public education system before the education system will ever
reflect the intent of the Brown decision. We may not uphold the
"separate but equal" doctrine but we have certainly not
created an integrated and equal system.

{a1]. J.D. Candidate, The Dickinson School of Law of The Pennsylvania
State University, 2003.

Units:

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